Employment Judge LiveseyIn person for claimantNot represented for respondentDate 28 October 2024
JUDGMENT
[1]The Claimant was unfairly dismissed, suffered unlawful deductions from wages, was dismissed in breach of contract and was entitled to a redundancy payment. He is entitled to the following sums in compensation from the Respondent;a. Unfair dismissal; £700b. Redundancy payment; £7,350c. Unlawful deductions from wages; £1,955.85d. Notice pay; £609.69 Total; £10,615.54[2]The Claimant’s complaint of unpaid holiday pay is dismissed upon withdrawal.
REASONS
[1]By a claim dated 12 March 2024, the Claimant brought complaints of unfair dismissal, breach of contract, unpaid holiday pay, failure to pay notice pay, unlawful deductions from wages and for a redundancy payment.[2]A response was received on 25 April 2024 in which the Respondent alleged that the Claimant had not been employed for at least two years. Mr Nathan Wright was specified as the contact at the Respondent. The response did not set out the Respondent’s position in respect of the money claims.[3]On 17 July 2024, a Notice of Hearing was sent out with standard directions to both parties at the email addresses that had been provided on the Claim and Response Forms. The Respondent also replied to an email from the Tribunal in relation to a particular query in August using the same email address.[4]On Friday, 25 October, the parties were provided with details of how to join the video hearing today. Approximately an hour later, the Respondent replied as follows, using the same email address; “Thank you for this, but this is the first time I have heard about this hearing and I and out of the country all next week.”[5]It was not understood how the Respondent had received the hearing details on Friday but had not, apparently, received the Notice of Hearing or any other communications in relation to the case, despite the fact that the same email address was used throughout. Further, it was not understood how Mr Wright’s absence from the country was a bar to him attending the hearing remotely.[6]On the basis of the information before me, it was reasonable to believe that the Respondent had received the Notice of the Hearing and that there had been no other reason for him not to have attended the hearing. In the circumstances, it was appropriate to proceed to hear the Claimant’s case under rule 47 of the Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013. Factual findings[7]The Claimant give evidence in support of his claim and the following factual findings were made on the balance of probabilities.[8]The Claimant was first employed by North Kensington Residential Ltd t/a Winkworth Estate Agents as a Senior Sales Negotiator at its offices in Worthing. The business was a franchise. There were 60 or so ‘Winkworth’ branches nationwide, but Mr Magee and Mr Kerman owned and ran the Worthing office only.[9]The start of the Claimant’s employment was a significant issue in the case. The Claimant alleged that he had started on 7 May 2016, whereas the Respondent believed that he had not begun until 7 March 2022.[10]The Claimant produced a screenshot of a message from a ‘Steve Magee’ which stated that had worked in the Worthing Office “for 7 years now”. Further, he produced a photograph of the first page of his 2016 contract, which was dated 1 May 2016 and which clearly showed North Kensington Residential Ltd and him as employer and employee respectively.[11]The Claimant told me that he had worked part-time in the office initially, for eight hours a week on Saturdays and additional hours during the school holidays. He was paid on an hourly basis and the others in the office were Mr Kerman, Mr Magee’s franchise business partner, and Ms Nightingale, the office manager. In 2022, his hours increased substantially and a new contract was signed in March. At the end of his employment, the Claimant was earning £40,000 pa, being £3,333.33 gross per month and £2,642 net. That was £769.23 gross/wk and £609.69 net/wk.[12]On 23 December 2023, the Claimant’s employment transferred to the Respondent. It was transfer to which the provisions of TUPE applied. That was not in dispute. The Respondent is a business in which Mr Wright is the only director.[13]The Claimant spent much of the rest of December and the first two weeks of January showing Mr Wright how the office functioned. He was not paid in December. On 15 January, he received the following letter; “It is with regret that I am writing to inform you of the termination of your employment as Sales Negotiator at the Worthing office of Winkworth Estate Agents and in accordance with your Employment Contract hereby give you the required Notice of one month, effective with the date of this letter. This decision is not a reflection of your performance or dedication to the role, but rather a necessary measure taken due to current financial position of the Business. The final day of your employment will be 14 February 2024 and you will receive all salary owed to you on or before this date, along with any outstanding Holiday pay you may be entitled to.”[14]The Claimant chased his outstanding money in February. There was an exchange on WhatsApp on 14 February in which Mr Wright apologised for not having made payment and maintained a ‘promise’ that he would be ‘paid in full’.[15]The Claimant produced HMRC documentation which showed that the Respondent had notified the tax authorities that he had been paid, which he denied.[16]The Claimant was able to secure new employment in the week after his dismissal. He was employed as a Senior Negotiator by Jacob Steel from 22 January 2024 and is now in receipt of £30,000 per annum gross which, with commission, equates to his previous salary. Conclusions; liability[17]The Claimant had more than two years’ service, having initially been employed in May 2016. He was dismissed unfairly. No adequate or fair process was adopted leading to his dismissal. He was not warned and/or consulted with in respect of a possible redundancy and there was no attempt to examine possible alternatives.[18]The stated reason for the dismissal appeared to have been that of redundancy and, given the subsequent correspondence about nonpayment of salary, that appeared to have been the most likely scenario. He did not receive a redundancy payment.[19]The Claimant did not receive appropriate notice pay. Considering his length of service, he was entitled to 7 weeks net pay.[20]The Claimant suffered unlawful deductions from his wages. He was unpaid in the months of December following the transfer, January and February.[21]The Claimant did not wish to pursue a complaint in relation to unpaid holiday pay. Conclusions; remedy[22]The Claimant was entitled to the following sums in compensation;a. Unfair dismissal; Basic award; 7 years x 1.5 x £700 (a week’s maximum) = £7,350 Reduced by the value of the redundancy payment (below) Nil Compensatory award; Loss of statutory rights = £700b. Redundancy payment; 7 years x 1.5 x £700 (a week’s maximum) = £7,350c. Unlawful deductions from wages; December; £634.85 January; £1,321 (to 15 January, remainder as notice) = £1,955.85d. Notice pay; 1 weeks’ net pay The Claimant mitigated his loss in respect of the balance = £609.69[23]The Claimant’s total entitlement is therefore £10,615.54.[1]The Respondent has applied for a reconsideration of the Judgment dated 28 October 2024 which was sent to the parties on 7 November 2024. The grounds are set out in his application of 20 November 2024. Relevant principles[2]Schedule 1 of The Employment Tribunals (Constitution and Rules of Procedure) Regulations 2013 contains the Employment Tribunal Rules of Procedure 2013 (“the Rules”). Under rule 71, an application for reconsideration under rule 70 must be made within 14 days of the date on which the decision (or, if later, the written reasons) were sent to the parties. The application was therefore received just inside the relevant time limit.[3]The grounds for reconsideration are only those set out within rule 70, namely that it is necessary in the interests of justice to do so. That allows for a ‘broad discretion’ to be exercised (Outasight VB Ltd-v-Brown UKEAT/0253/14) and, although the list of factors that may be relevant will be fact sensitive in every case, it was clear form the decision in Outasight that finality in litigation is invariably going to be one such factor. That has been a thread which has been common to many of the authorities in this area, stretching back, perhaps, to Phillips J’s judgment in Flint-v-Eastern Electricity Board [1975] ICR 395. Most recently, in Phipps-v-Priory Education Services Ltd [2023] EWCA Civ 652, the Court of Appeal encouraged an approach to rule 70 which involved the weighing of the injustice that the parties would suffer if a reconsideration application was allowed or refused, but by also “giving weight to the public interest in the finality of litigation.” (paragraph 36). Discussion and conclusion[4]In his application, the Respondent relies upon 3 grounds; 4.17 Rule 21 judgment – universal template. 01/01/14 Case No: 6000995/2024a. That he did not receive notification of the hearing; He has not set out any reasons why the matters set out in paragraphs 3 – 5 of the Reasons of 28 October 2024 might have been wrong or provided any evidence which might have suggested otherwise. He bald assertion is not sufficient to answer the significant doubts which surround his non-attendace;b. That the Claiamnt’s employment commenced on 7 March 2022 according to his contract; See paragraphs 10 and 11 of the Reasons. Again, the Respondent has provided the 2022 contract but his assertions do not overcome the findings made as a result of the evidence heard from the Claimant about his service having commenced in 2016.c. That all salary deductions were undertaken in accordance with the payroll PAYE scheme. Again, the Respondent’s declalration to that effect has not attempted to address the findings that were made on the basis of the evidence that was heard. It cannot be said that this argument has a reasonable prospect of success at a reconsideration hearing without more and without some substance behind the argument.[5]Accordingly, the application for reconsideration pursuant to rule 72 (1) is refused because there is no reasonable prospect of the Judgment being varied or revoked.